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Judgment
Shaji P.Chaly,J.
Captioned appeal is filed by the 3rd respondent in W.P.(C) No.8250/2018 on the files of the learned Single Judge, challenging the interim order dated 11.11.2020, whereby the learned Single Judge, after elaborate consideration of the subject issues involved in the writ petition, issued the following directions:
"40. For the aforesaid reasons, this Court finds that the petitioner has made out a prima facie case for grant of an interim order restraining the 3rd respondent Sobha Limited or anyone under it, from proceeding further with the construction, on the strength of Ext.P5 order dated 02.07.2015 of the 2nd respondent Chief Town Planner granting layout approval, as per Ext.P6 approved site plan bearing No.256/15, until further orders.
The Secretary of the 1st respondent Grama Panchayat shall take necessary steps to ensure that no further construction is undertaken by the 3rd respondent Sobha Limited or anyone under it, on the strength of Ext.P5 order granting layout approval, as per Ext.P6 approved site plan, until further orders.
The additional 8th respondent Revenue Divisional Officer shall obtain satellite imagery of the land having an extent of 55.010 acres, covered by Ext.P2 layout approval dated 21.11.2009 (approved site plan bearing No.991/9), as on 12.8.2008, the date of commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008; and also the satellite imagery of land having an extent of 2.01 acres covered by Ext.P5 layout approval dated 02.07.2015 (approved site plan bearing No.256/15), as on 02.07.2015, from the Director of the Kerala State Remote Sensing and Environment Centre, which shall be placed on record along with a memo filed by the learned Special Government Pleader. "
It is thus challenging the legality and correctness of the said interim order, the appeal is preferred. Brief material facts for the disposal of the writ appeal are as follows;
The writ petition is filed by a Resident's Association viz., Sobha City Residents Owners Association, Puzhakkal, Thrissur - 1st respondent herein, seeking a Writ of Certiorari to quash Exhibit P12 order dated 29.1.2018 of the Tribunal for Local Self Government Institutions in Appeal No.64 of 2017 and a Writ of Mandamus commanding the Kolazhy Grama Panchayat, Thrissur - 2nd respondent, not to issue permit to the appellant without complying with the conditions stipulated in Exhibit P5 layout approval dated 2.7.2005 issued by the Chief Town Planner - 3rd respondent.
It seems, on 12.3.2018, when the writ petition was admitted, learned Senior Government Pleader took notice for the Chief Town Planner, learned counsel for appellant entered appearance and notice was ordered by speed post to the other respondents.
On 8.8.2019, learned Single Judge noticed that going by the averments in the writ petition, vide Exhibit P1 layout approval dated 25.4.2018 issued by the Chief Town Planner, permission was granted to develop 55.010 Acres of land, a major portion of which is comprised in 514, 525 to 527, 534 to 557 of Kuttur Village and the remaining portion in Sy.Nos.271 & 280 of Puzhakkal Village, for the purpose of constructions, to Sobha City consisting of residential villas, flats, convention centre, club house, shopping mall, amusement park, multiplex hotel, hospital and recreational open space. Therefore, taking note of the description of the property, having an extent of 22 hectares and 26.07 Ares (55.010 acres) in Exhibit R3(a) sale deed dated 8.3.2013 produced by the appellant, learned Single Judge directed the appellant to place on record the Memorandum and Articles of Association of the five companies viz., (1) M/s.Vayaloor Real Estate Pvt. Ltd. (2) M/s.Vayaloor Builders Pvt. Ltd. (3) M/s.Vayaloor Properties Pvt. Ltd. (4) M/s.Valsal Vettikkadu Realtors Pvt. Ltd. and (5) M/s.Vayaloor Developers Pvt. Ltd., and also the respective orders obtained from statutory authority under Clause 6 of the Kerala Land Utilisation Order, 1967 for conversion of lands. Pursuant to that order, memorandum of Association and Articles of Association of the aforesaid companies and also order obtained under clause (6) of the Kerala Land Utilisation Order, are placed on record, along with a memo dated 31.8.2019.
Learned Single Judge also noticed that all the aforesaid companies are functioning with the registered offices at one and the same address, Chennai. As per an order dated 4.9.2019, learned Single Judge has suo motu impleaded the State of Kerala, represented by the Secretary to Government, Revenue Department and also the Revenue Divisional Officer, Thrissur as additional respondent Nos.7 & 8. Certain directions were issued to the learned Special Government Pleader in order to ascertain certain aspects relating to the provisions of the Kerala Land Reforms Act, 1963. So also Revenue Divisional Officer was directed to file statement/ counter affidavit with reference to the orders issued under clause 6 of the Kerala Land Utilisation Order and subsequent orders, if any, issued under the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008, in respect of the lands covered by the orders issued under clause 6 of the Kerala Land Utilisation Order.
Pursuant to the said order, Revenue Divisional Officer has filed a counter affidavit, wherein it is stated that on verification of the available records in the office of the Revenue Divisional Officer, Thiruvananthapuram, no orders under clause 6 of the Kerala Land Utilisation Order could be found in respect of the properties in question and that, by Exhibit R8(a) proceedings submitted along with counter of the Revenue Divisional Officer dated 26.6.2020, the Senior Superintendent in that office has been authorised to conduct a detailed enquiry regarding the orders issued under the Kerala Land Utilisation Order pertaining to Sy.Nos.217. 537, 538, 541 and 548 measuring 2.01 Acres in Kuttur Village and to submit a report.
In the counter affidavit, it seems, it is stated that the properties owned by the five companies referred to in the order of the learned Single Judge dated 5.9.2019 are lying contiguous and the total extent of the property held by M/s.Vayaloor Real Estate Pvt. Ltd and others is more than 20 hectares, which is around 55 Acres. Therefore, it is found by the learned Single Judge that going by the provisions of the Kerala Land Reforms Act, 1963, no person can hold properties more than 7.5 standard Acres in view of Sections 82 & 83 of the Kerala Land Reforms Act, 1963. When the said aspect was brought to the notice, it is apparent from the interim order of the learned Single Judge that, the Revenue Divisional Officer has appointed an officer as per a proceeding dated 26.6.2020 to conduct preliminary enquiry and submit a detailed report as per the said Act.
Anyhow, in the additional counter affidavit filed by the appellant, it is contended that the orders issued under clause 6 of the Kerala Land Utilisation Order are of the years 1995-1996, which belong to the category of documents liable to be destroyed as per the provisions of the Kerala Destruction of Records Act, 1961, the rules made thereunder and the Office Manuels in that regard and therefore, unlikely to be available in duplicate; it is further contended therein that the orders issued under Kerala Land Utilisation Order had been verified and acted upon through the orders umpteen number of times by various authorities including Revenue Divisional Officer - 8th respondent. Thereupon, it was submitted that the documents pertaining to those orders are exclusively with the owners of the land and therefore, they are proper and necessary parties to the enquiry.
Various other documents were produced and contentions were advanced elaborately by the rival parties, and learned Single Judge found that the grievance of the writ petitioner Association and also that of respondents 4 to 6 - independent owners of the buildings constructed by the appellant, as against the construction made in 2.01 acres of land situated on the south-western side of the total area of 7.76 Acres earmarked for commercial building, by constructing flats/apartments in three multi storied complex, thereby limiting the area of commercial building to 5 Acres.
The contention of the writ petitioner is that in Exhibit P6 approved site plan bearing No.256/50, an extent of 1.07 Acres of land situated in western and northern side of the lake is shown as recreational open space i.e., 10 metres wide recreational area but no such recreational area is available. Similarly, 1.07 Acres of recreational area shown in Exhibit P6 site plan is only imaginary and not in existence and in addition to that, a portion of the land having an extent of 2.01 Acres situated on the western side of the existing commercial building and the southern side of the lake is shown as site for residential development. It was also prima facie found that though the petitioner Association submitted Exhibit P7 complaint dated 9.6.2016 before the Kolazhy Grama Panchayat, the same ended in dismissal by Exhibit P9 order dated 3.1.2017, which was under challenge before the Tribunal for Local Self Government Institutions, which also ended in dismissal by Exhibit P12 order dated 29.1.2018, which is the subject matter of challenge in the writ petition. Learned Single Judge has taken into account various aspects while considering the issues raised by the rival parties, and it was thereupon that the directions were issued.
The paramount contentions advanced by the appellant are that the order of the learned Single Judge restraining all further constructions is contrary to law, evidence and facts of the case; that the learned Single Judge ought not have embarked upon suo motu enquiry regarding matters totally beyond the scope of the writ petition; the issues raised in the suo motu proceedings were not those to which the parties to the litigation had joined issues in the writ petition and therefore, totally unwarranted; orders issued under the Kerala Land Utilisation Order were around more than 25 years old and were relied upon and acted upon for various matters and purpose by various statutory authorities and therefore, the learned Single Judge ought not have doubted the genuineness of the said documents simply because they had no seal, especially since there was no prescribed statutory form for Kerala Land Utilisation Orders; and that the learned Single Judge ought not have attached much significance to the fact that the orders issued under the Kerala Land Utilisation Order are not available with the Revenue Divisional Officer having regard to the fact that the said documents belong to the category of documents, which would be destroyed in three years. Other contentions are also raised in regard to the observations and directions made by the learned Single Judge relying upon the provisions of the Kerala Land Reforms Act, 1963.
We have heard learned senior counsel for appellant Sri.George Poonthottam, assisted by Adv.G.P.Shinod, learned Special Government Pleader Sri.S.Renjith, Sri.S.Sreekumar learned Senior Advocate for the 1st respondent, Sri.D.Kishore for respondents 4 to 6, and perused the pleadings and materials on record.
Learned Senior Counsel for the appellant addressed arguments in accordance with the pleadings discussed above. Learned Senior counsel for the 1st respondent submitted that the appellant has not made out any case so as to interfere with the interim order passed by the learned Single Judge since the interim order was passed after identifying that various issues are to be sorted out in the writ petition since prima facie there are violations of the provisions of the Kerala Land Reforms Act, 1963 and the Kerala Land Utilisation Order, 1967.
It was further contended that the records produced along with the writ petition, the documents and the counter affidavit filed by the Revenue Divisional Officer would make it clear that there are serious issues to be considered by the writ court in the matter of construction carried out by the appellant in violation of the layout approval and the provisions of the Kerala Land Utilisation Order. It is also submitted that the said findings are recorded by the learned Single Judge on the basis of the contentions advanced by the writ petitioner Association in regard to the illegal constructions carried out by the appellant. That apart it is contended that there is no provision either in the Kerala Municipality Building Rules or under the Kerala Panchayat Building Rules, which enables submission of an application for revising a development permit; that the only provision is extension of the period and merely for the reason that an application for revision of the approved layout was submitted by the appellant, the 3rd respondent - Chief Town Planner cannot grant a revision of the approved layout since it is not permissible as per the Scheme of the Kerala Municipality Building Rules or Kerala Panchayat Building Rules and therefore, the contentions advanced by the appellant that the layout has been revised cannot be sustained under law; that it is contended that the approval granted in 2009 and 2011 can only be considered as approved layout to which appropriate provisions which is prevalent on the date of such approval would be applicable. Other contentions are also made touching upon the merits of the matter in the writ petition, however, in our considered opinion, we cannot go into those aspects since they are still under consideration and yet to be adjudicated by the learned Single Judge.
Learned counsel for respondents 4 to 6 also advanced arguments supporting the findings contained in the impugned interim order passed by the learned Single Judge.
We have evaluated the rival submissions made across the Bar. The sole question to be considered is whether any interference is required to the interim order of the learned Single Judge ?
The paramount contention advanced by the learned Senior Counsel appearing for the appellant is that by the impugned interim order, the learned Single Judge is attempting to expand the scope of the writ petition. In fact one of the reliefs sought for in the writ petition is that Kolazhi Grama Panchayat may be directed not to issue a permit to the appellant without complying with the conditions stipulated in Exhibit P5. In order to understand the real implication of Exhibit P5 layout approval of the Chief Town Planner, it is better that it is extracted:
Proceedings of Chief Town Planner
Thiruvananthapuram
Subject: Town and Country Planning Department - Office of Chief Town Planner Trivandrum-Order issuing Layout approval for land development at the areas under Kolazhy By Adat Grama Panchayath which is under Kuttur & Puzhakkal Village.
Reference: 1. The letter no. 53/2586/15 of The Secretary, Kolazhy Grama Panchayath dated 21/05/15
The letter no. 01/1253/15/K Dis of Thrissur Town Planned dated 05/06/15,
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Order no. C2/5362/15/D.Dis dated: 02/07/2015
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Issuance of order of approval for layout of building and usage of land if 55.010-acre area having survey no. 218/1,2,4, 217/1,2,3,4 85 in Puzhakkal Village, Adat Grama Panchayath, Thrissur District and having survey nos 534/3,4,5,7, 535/1,2,3, 536/1,2,3, 537/1, 538/1,2,3, 539, 540/1,2, 541/1,2,3,4, 542/1,2,3,4, 543/1,2,3,4,544, 545/1,2, 546/1,2,3, 547/1,2,3, 548/1,2, 549,550/1,2,3, 552/1,2,3,4,5, 553/1,2, 554/2, 555/1,2,3,4,5,556/1 in Kuttur Village, Kolazhy Grama Panchayath for Sobha Topaz & Sobha Sapphire, Sobha Jade, Sobha Life Style Residential Villas, Commercial Building, (Shopping Mall + multiplex) Sobha Malachite (25 typical villas), Residential Plots, Club House and Recreational areas subject terms as mentioned below.
1) As per KPBR 2011 Rule 11(1), the Secretary to examine and ensure the records related to ownership of property, survey number, extent, boundaries, area, measurements, ownership right and development right.
2) The construction should be according to the KPBR- 2011 and related amendments and Acts.
3) The proposed site falls in Adat Panchayath and Kolazhy Panchayath. As major portion of the site falls in Kolazhy Panchayath, the application had been forwarded by secretary, Kolazhy Panchayath with authentication. Hence necessary approval/authentication shall be obtained from Adat Panchayat
4) The conditions insisted by the Chief Town Planner by earlier orders shall satisfied (Proceedings No. C2/11186/07/D Dis dated 25/04/08 and C2/6197/09/D Dis dated 21/11/09 of Chief Town Planner.)
5) Secretary shall ensure that there is no Purambokku land included in the proposed site.
6) Recreation open space shall be provided as per Rule 31(iii) of KPBR.
7) Suitable Space Shall be provided as per rule 31(iv) for electric transformers in the space shown as civic amenities.
8) Rule 26(3) of KPBR shall be satisfied and shall be ensured by Secretary.
9) NOC from Pollution Control Board shall be obtained
10) Concurrence from Kerala State Electricity Board shall be obtained for installation of Electric transformer
11) Concurrence from Pollution Control Board shall be obtained for installation of Sewage Treatment Plant in the site.
12) If necessary, NOC from Water Authority/Irrigation Department shall be obtained
13) Access to site shall be provided in accordance with KPBR provisions and shall be marked in the drawing
14) Provisions as per rule 31(x) of KPBR shall be provided and shall be ensured by the Secretary
15) If the development comes under in the purview of Kerala Paddy land & Wet land Conservation Act 2008, development shall be in accordance with this Act.
16) As per KPBR rule 26(4a) NOC shall be obtained from the concerned.
17) The Secretary shall ensure that the details shown in the layout map tally with Ground realities
18) NOC from the concerned departments shall be obtained if there is land cutting and land filling
19) Secretary shall ensure that, the concerned site is not a part of paddy land and there is no purambokku land.
20) The secretary shall ensure that, the survey numbers included in the earlier approved lay out orders are only included in the present lay out approval order.
21) The secretary shall ensure that, the recreation space, parking space, internal road space and other open space are provided as per rule and the same shall not be converted for other use in future.
22) Secretary shall ensure that space for electrical substation is provided.
23) The water channel existing on the North-Western side of the concerned site shall not be polluted by this agency/this development and there shall be no encroachment. NOC shall be obtained from the concerned department in this regard.
Approved site plan no. 256/15 is attached herewith."
On a perusal of the conditions in Ext P5, condition Nos.15 and 19 make it clear that if the development comes under the purview of the Kerala Conservation of Paddy land and Wetland Act, 2008, the development shall be in accordance with the said Act, and the Secretary shall ensure that the property is not a part of paddy land respectively. Therefore, the directions issued by the learned Single Judge as per the interim order extracted above can only be found as a subject matter within the scope of the writ petition. So also the learned Single Judge has considered the whole gamut of the aspects involved and passed the interim order restraining the appellant from proceeding further with the construction since prima facie it is found that the issues to be adjudicated had some intricacies with the provisions of the Kerala Land Reforms Act, 1963. To put it otherwise, in order to sort out the issues, the learned Single Judge was of the clear opinion that sufficient records are necessary and it was on the basis of the same alone, recurrent directions were issued for production of documents and filing counter affidavits by the respective statutory authorities, after impleading them Suo moto.
Going through the interim order, we are of the considered opinion that it was only on the basis of the prima facie findings, further construction was stayed, and under no circumstances it can be said to be bad, illegal or unfair at this stage of the proceedings, since many intricate issues have surfaced during the process of considering the legality and feasibility of the conditions contained in Exhibit P5 layout granted by the Chief Town Planner, and the legality and correctness of Exhibit P12 order passed by the Tribunal for Local Self Government Institutions. In an appeal filed under section 5 of the High Court Act, 1958, the appellate court needs to consider only as to whether there is any jurisdictional error or any other legal infirmities justifying the court to interfere with any interim orders.
We are also of the view that the order of restrainment was granted after giving opportunity to the parties and having prima facie satisfied that the issues raised by the writ petitioner has to be adjudicated, taking into account the rival submissions made by the parties, and therefore if the construction is permitted to be carried on it may affect the balance of convenience . Such an approach made by the learned Single Judge cannot be said to be without jurisdiction and beyond the scope of the writ petition, in order to interfere with the interim order passed. On the other hand we are of the considered opinion that the interim order was passed with adequate reasons on the basis of the prima facie materials on record, and that too, after giving sufficient opportunity to the appellant as well as respondents.
Taking into account all the above legal and factual circumstances, we do not think that this is a fit case where any interference is required to the interim order passed by the learned Single Judge.
Needless to say, writ appeal fails, accordingly it is dismissed, however we make it clear that the appellant would be at liberty to seek early hearing of the matter .